Today, November 9, 2004, the Supreme Court will hear oral arguments in the case of Pasquantino v. U.S. This case raises the issue of whether the wire fraud statute, 18 U.S.C. 1343, applies to schemes that defraud a foreign government of tax revenues. The Fourth Circuit had held that the wire fraud statute cannot be extended to such schemes, because it "would amount functionally to penal enforcement of Canadian customs and tax laws" through the U.S. criminal code.

Late in the afternoon on Monday, November 8th, Judge James Robertson of the federal district court in Washington D.C. issued an order halting the military trial at Guantanamo of a Yemini prisoner suspected of being a member of Al Qaeda.

Judge Roberston's 47-page decision included the following passages:

"A tribunal set up to try, possibly convict, and punish a person
accused of crime that is configured in advance to permit the
introduction of evidence and the testimony of witnesses out of the
presence of the accused is indeed substantively different from a
regularly convened court-martial."

"The government has asserted a position starkly different from the
positions and behavior of the United States in previous conflicts, one
that can only weaken the United States' own ability to demand
application of the Geneva Conventions to Americans captured during
armed conflicts abroad."

Judge
Robertson went on to note that oppresive regimes in other countries "have already begun to cite the
United States' Guantánamo policy to justify their own repressive
policies."

Gee, from the media coverage, I was pretty sure Scott Peterson was guilty, but the jury seems slow in coming back. For some reason not apparent to the reporters covering the trial, the jury was recalled to the courtroom and instructed on the importance of taking other jurors' views into account. Details here. Obviously, the implication is that some juror(s) might support acquittal. This will teach me not to form conclusions about just results in criminal cases without having heard any of the evidence.

In other California jury deadlock news, the Sacramento Bee reports that a trial judge was excoriated in an opinion for delivering an erroneous dynamite charge in a capital case. Details here.

The Supreme Court will hear oral arguments today in two criminal cases.

In Devenpeck v. Alford, the issue presentend is whether a police officer violates the 4th Amendment when he arrests a suspect citing an offense for which he does not have probable cause, if the officer does in fact have probable cause to arrest based on another offense that is not closely related to the offense articulated to the suspect. For more, click here.

In Shepard v. U.S., the issue is whether in a case in which the defendant has previously pleaded guilty to a
burglary charge brought under a nongeneric statute, the sentencing
court imposing a mandatory minimum sentence under the Armed Career
Criminal Act is bound by the categorical method of application
enunciated in U.S. v. Taylor, 495 U.S. 575 (1990) or should instead
conduct an inquiry – including an evidentiary hearing – into the facts
underlying the conviction, to determine whether, in the guilty plea
proceeding, both the defendant and the government believed that generic
burglary was at issue? For more, click here.

This blog will not focus on celebrity crimes, but this item from The Smoking Gun, which to my knowledge was not widely reported, seems interesting because it may explain in part why the criminal case was dropped. On July 31, 2004, the accuser sent a note to authorities identifying some aspects of her statements to the police which were not true--not with respect to the incident itself, but some of the surrounding details. Since she was represented by a lawyer at this point, one may assume that the decision to write the letter and the letter's content had the benefit of counsel's guidance.

UPDATE:Here's a report from the LA Times on a mock cross examination by prosecutors that contributed to the decision to drop the criminal case. The report raises the ethical question of whether a witness changing a story during a mock cross is Brady material; the Eagle prosecutor decided it was not.

Yale Law School announces: "Gary Wells, professor of psychology and distinguished professor of liberal arts and sciences at Iowa State University, will give a talk titled "Eyewitness Identification and Wrongful Convictions," on Tuesday, November 9, 2004, at 6:10 p.m. in Room 127 [at 127 Wall Street, New Haven, CT]. The talk is sponsored by the Innocence Commission Project and is free and open to the public." More details here: http://www.law.yale.edu/outside/html/Public_Affairs/533/yls_article.htm

University of Idaho Professor Richard Henry Seamon and independent scholar William Dylan Gardner ask in the Harvard Journal of Law and Public Policy: Does (Should) The Patriot Act Raze (or Raise) the Wall Between Foreign Intelligence and Criminal Law Enforcement?

The abstract of their paper begins:

"Some blame the United States' failure to prevent the 9/11 terrorist attacks on a "wall" between foreign intelligence and criminal law enforcement activities. That wall is commonly believed to have had a statutory basis that was eliminated by USA PATRIOT Act provisions amending the Foreign Intelligence Surveillance Act of 1978 (FISA). According to a recent decision by the Foreign Intelligence Surveillance Court of Review, however, the Patriot Act actually created, for the first time, a statutory foundation for the wall that did not exist before. Under the Court of Review's admittedly "paradoxical" interpretation, the Patriot Act does not raze – rather, it raises - a wall between foreign intelligence and criminal law enforcement. "